8.3Effect of Abusive Conduct on Spousal Support Awards
The trial court has discretion to order spousal support to be paid “as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.”5 MCL 552.23(1).
The parties’ conduct during the marriage is one of several factors the court must consider when determining whether alimony should be awarded in a divorce proceeding.6 Cloyd v Cloyd, 165 Mich App 755, 758-759, 761 (1988) (trial court should have awarded the plaintiff-wife alimony where “the factors considered by the trial court[, which included one incident where the defendant-husband hit the plaintiff-wife in the face, pulled out a gun, and choked their son, and another incident where the defendant-husband threw the plaintiff-wife on the bed, tore buttons off her clothing, pulled out a gun, bruised her arm, and ripped the phone from the wall,] clearly weigh[ed] in favor of awarding alimony to [the] plaintiff[-wife]”). But see Loutts v Loutts, 298 Mich App 21, 32 (2012), where “[t]he trial court correctly noted that the fact that [the] defendant[-wife] obtained a personal protection order against [the] plaintiff[-husband] did not ‘automatically import a finding of domestic violence.’”7
A party to a divorce proceeding “should not lose [his or] her marital right to support to which [he or] she would have been entitled had the marriage continued and which [he or] she was compelled to forgo because of [his or her spouse’s] conduct.” Johnson v Johnson (Marie), 346 Mich 418, 420, 429-430 (1956) (trial court did not abuse its discretion in awarding the plaintiff-wife alimony where the plaintiff-wife “was forced into [filing for divorce] by the defendant[-husband’s] [extreme and repeated] cruelty”).8
If ordering spousal support and the abusive party is the payor, the court must issue an order of income withholding for the spousal support payments, unless good cause exists otherwise. MCL 552.604(1); MCL 552.604(3)(a). Utilizing the income withholding option may help combat continued abuse through communications included with direct mailing of support checks.
Because abusers may use parenting time as an opportunity to harass, threaten, or assault a former partner, the court should consider refraining from linking parenting time orders to support payments in cases involving domestic violence. See generally MCL 722.27a(7)(c)-(d), which permits a court to consider whether the exercise of parenting time presents a reasonable likelihood of abuse of a parent or abuse/neglect of a child.
The court should remind the parties that, in Friend of the Court cases, it is the Friend of the Court’s responsibility to initiate enforcement proceedings for an arrearage of a support order. See MCL 552.511; MCR 3.208(B). Note that parties should not be allowed to opt out of Friend of the Court services if there is evidence of domestic violence. MCL 552.505a(2)(d).
5. Note that in interstate and international cases, the Uniform Interstate Family Support Act (UIFSA), MCL 552.2316(1), permits the absence of a petitioner’s presence at court proceedings addressing “the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.” For purposes of international cases, the UIFSA applies to foreign countries subject to the Convention.
6. The Court of Appeals set out the following factors the trial court must consider when determining whether alimony should be awarded in a judgment of divorce: “(1) the past relations and conduct of the parties; (2) the length of the marriage; (3) the ability of the parties to work; (4) the source and amount of property awarded to the parties; (5) the age of the parties; (6) the ability of the parties to pay alimony; (7) the present situation of the parties; (8) the needs of the parties; (9) the health of the parties; (10) the prior standard of living of the parties and whether either is responsible for the support of others; and (11) general principles of equity.” Cloyd, 165 Mich App at 759, citing Vance v Vance, 159 Mich App 381 (1987).
7. In Loutts, 298 Mich App at 32, “the first domestic violence charge against [the] plaintiff[-husband] was dismissed[,] and [the] plaintiff[-husband] was acquitted of the second charge.”
8. In Johnson (Marie), 346 Mich at 420-421, the “extreme and repeated cruelty” from which the court relied on in awarding the plaintiff-wife alimony included the plaintiff-wife’s allegations contained in the complaint for divorce, which accused the defendant-husband of being “a man of violent temper [who] addressed [the plaintiff-wife] and the[ir] children with vile, opprobrious, profane[,] and obscene language; that [the] defendant[-husband] [had] temper tantrums, during which time he would rave and shout at [the] plaintiff[-wife] and the[ir] children; that [the] defendant[-husband] [had] continually accused [the] plaintiff[-wife] of being mentally ill; that [the] defendant[-husband] [] made excessive demands upon [the] plaintiff[-wife] for marital intercourse; that [the] defendant[-husband] [was] of an extremely jealous nature to a degree that equal[ed] almost a mania; that [the] defendant[-husband] insisted that [the] plaintiff[-wife] be treated by only female physicians; that [the] defendant[-husband] was very severe in his discipline of their children, particularly so in forcing them to train for sports.”